{"id":164612,"date":"2010-08-31T00:00:00","date_gmt":"2010-08-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/medical-council-of-india-vs-the-chairman-on-31-august-2010"},"modified":"2016-03-30T14:58:54","modified_gmt":"2016-03-30T09:28:54","slug":"medical-council-of-india-vs-the-chairman-on-31-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/medical-council-of-india-vs-the-chairman-on-31-august-2010","title":{"rendered":"Medical Council Of India vs The Chairman on 31 August, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Medical Council Of India vs The Chairman on 31 August, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 31\/08\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE D.MURUGESAN\nand\nTHE HONOURABLE MR.JUSTICE M.DURAISWAMY\n\nWrit Appeal (MD)No.74 of 2010\nand\nM.P.(MD)No.1 of 2010\n\n\nMedical Council of India,\nrep.by its Secretary,\nPocket-14, Sector-8, Dwarka,\nNew Delhi-110 077.\t\t    \t... Appellant\/\n\t\t\t\t    2nd Respondent\n\nvs\n\n\n1.The Chairman,\n  Sree Mookambika Institute of Medical\n   Sciences,\nVelaytham Pillai Memorial Hospital Complex,\n  Padaninalam, Kulasekharam,\nrunb y Padanilam Welfre Trust,\nKulasekharam, Kanyakumari District.\t... Respondent-1\/\n\t\t\t\t\t    Petitioner\t\n\n2.The Union of India,\n  rep.by its Secretary,\n  Department of Health,\n  Central Secretariat,\n  New Delhi.\n\n2.The State of Tamil Nadu,\n  rep.by its Secretary,\n  Health & Family Welfare Department,\n  Fort St.George,\n  Chennai-600 009.\n\n\n4.The Director of Medical Education,\n  Directorate of Medical Education,\n  162, Poonamallee High Road,\n  Kilpauk, Chennai-600 010.\n\n5.The Secretary,\n  Selection Committee,\n  Directorate of Medical Education,\n  162, Poonamallee High Road,\n  Kilpauk, Chennai-600 010.\n\n6.The Tamil Nadu Dr.MGR Medical University,\n  rep.by its Registrar,\n  P.B.No.1200, No.69 Anna Salai,\n  Guindy, Chennai-600 032.\t\t... Respondents-2 to 6\/\n\t\t\t\t\t    Respondents-1,\n\t\t\t\t\t\t3 to 6\n\nWrit Appeal under Clause 15 of Letters Patent against the order of the learned\nSingle Judge, dated 30.09.2009, made in W.P.(MD)No.7265 of 2009.\t\t\t\n\t\n\n!For Appellant         ...  Mr.V.P.Raman\n^For Respondent-1      ...  Mr.Isaac Mohanlal\nFor Respondent-2       ...  Mr.K.K.Senthilvelan,\n\t\t            Asst.Solicitor General.\nFor Respondents 3 to 5 ...  Mr.D.Gandhi Raj,\nto 5\t\t\t    Government Advocate.\nFor Respondent-6       ...   Mr.C.Karthik\n\t\n\n:JUDGMENT\n<\/pre>\n
D.MURUGESAN,J<\/p>\n
  This writ appeal, filed at the instance of the Medical Council of India, seeks
\nto challenge the order in the writ petition holding that the Medical Council of
\nIndia has no role in the matter of admission in medical colleges under the
\nprovisions of the Indian Medical Council Act, 1956 (hereinafter referred to as
\n“the Act”).\n<\/p>\n
\t\t2.The facts giving rise to the present appeal are as follows:\n<\/p>\n
\t\t(a)The 1st respondent Shri Mookambika Institute of Medical Sciences,
\n(hereinafter referred as “the institute”), is owned and administered by a Trust
\nknown as ‘Padnilam Welfare Trust’.  The said Trust had established the institute
\nin question and the said institute had been recognised as a Linguistic Minority
\nEducational Institution.  It offers M.B.B.S. Degree Course of 5-1\/2 years
\nduration from the year 2006, with annual intake capacity of 100 students.
\nThough the institute was entitled to admit students for all the 100 seats by
\nitself, by virtue of an Agreement entered by the Trust with the State
\nGovernment, it had accepted to provide 50% of the seats from the total intake to
\nbe filled-in by the candidates sponsored by the State Government through
\ncounselling with a further right to fill-up the remaining 50% of seas as
\nmanagement quota.\n<\/p>\n
\t\t(b)During the academic year 2008-2009, the institute filled all the
\n50 seats under the management quota.  Though the Selection Committee,
\nconstituted by the State Government, sponsored 50 candidates informing the last
\ndate for joining as 20.07.2008, 11 candidates did not join and the same was
\nintimated to the Selection Committee.  Thereafter, the Selection Committee
\nsponsored another set of candidates on 26.09.2008 informing the joining date as
\n29.09.2008.  As there were still vacancies, a further list was sent by the
\nSelection Committee on 29.09.2008 informing the joining date as 30.09.2008.\n<\/p>\n
\t\t(c)The contention of the institute is that  out of the 50% of the
\nseats meant for the State Government, 43 candidates only joined before the cut-
\noff date, namely 30.09.2008 and on that date, the institute admitted seven
\ncandidates, namely the lapsed seats of the Government quota, on its own.  It is
\ncontended by the institute that these seven candidates were admitted as against
\nthe Government seats and they were treated for all purposes as government
\ncandidates and fee applicable to the Government sponsored candidates alone were
\ncollected.\n<\/p>\n
\t\t(d)During the academic year 2009-2010 the institute had again
\naccepted the seat sharing agreement of  50% : 50% as management seats and
\nGovernment Seats and the institute filled all the 50 seats to which it was
\nentitled to  as management seats.  At that relevant point of time, the Medical
\nCouncil of India addressed a letter, dated 06.02.2009, to the Secretary to
\nGovernment, Health and Family Welfare Department and the Director of Medical
\nEducation, the 3rd and 4th respondents herein, stating that the institute had
\nadmitted only 43 candidates under the Government quota and it admitted 57
\ncandidates as against the management quota of 50 seats and the excess admission
\nunder the management quota, namely seven seats for the academic year 2008-2009,
\nshould be reduced as against the management quota for the academic year 2009-
\n2010 and correspondingly it should increase allocation of Government quota seats
\nfor that academic year.\n<\/p>\n
\t\t(e)In view of the above communication, the State Government in
\nHealth and Family Welfare Department, in their letter dated 06.07.2009,
\naddressed the Medical Council of India seeking for a clarification stating that
\neven during the period 2006-2007 some of the seats meant for Government quota
\nwere filled-up by the colleges themselves and therefore to clarify as to whether
\nthose seats should also be surrendered to the Government in the subsequent
\nyears. In response to the said clarification sought for by the State Government,
\nthe Medical Council of India, by the order dated 23.07.2009, directed that the
\ninstitute in question should surrender seven seats to the Government in addition
\nto the 50 seats for admission under Government quota during the academic year
\n2009-2010.  This order was questioned by the 1st respondent institute in the
\nwrit petition and it was allowed.\n<\/p>\n
\t\t(f)While allowing the writ petition, the learned Judge has also gone
\ninto the question as to the power of the Medical Council of India to direct the
\ninstitute to surrender the corresponding seats filled-up by the colleges
\ntreating those seats as the lapsed seats  and held that it has no power under
\nthe Act to issue such directions.  This appeal is basically filed questioning
\nthat finding of the learned Judge.\n<\/p>\n
\t\t3.It may be pointed out that the learned Judge has also held that in
\nthe light of the judgments of the Supreme Court in Mridul Dhar vs. Union of
\nIndia, reported in (2005) 2 SCC 65 and in Al-Karim Educational Trust  vs.
\nMedical Council of India,<\/a> reported in  2005 (13) SCC 455, the surrender of seats
\nto the Government would be available only in case the management  admitted
\ncandidates in excess of the prescribed management quota seats.  The learned
\nJudge has also rejected the contention of the learned counsel for the institute
\nthat after the judgment of Supreme Court in P.A.Inamdar  vs. State of
\nMaharashtra,<\/a>  reported in AIR 2005 SC 326, the question of surrender of the
\ncorresponding number of lapsed seats to the Government would not arise. It is
\nrelevant to point out that as against those findings, the institute has not
\npreferred any appeal.\n<\/p>\n
\t\t4.We have heard Mr.V.P.Raman, learned counsel appearing for the
\nappellant, Mr.Isaac Mohanlal, learned counsel for the institute,
\nMr.K.K.Senthilvelan, learned Assistant Solicitor General, for the 2nd
\nrespondent, Mr.D.Gandhiraj, learned Government Advocate, for respondents 3 to 5
\nand Mr.C.Karthik, learned counsel appearing for respondent No.6.\n<\/p>\n
\t\t5.As the appeal is at the instance of the Medical Council of India,
\nparticularly concerning about the finding of the learned Judge as its
\njurisdiction to issue the order impugned in the writ petition, Mr.Isaac Mohanlal
\nhas contended that this Court can also consider the applicability of the
\njudgment of the Apex Court in P.A.Inamdar case. To decide the issue, we may also
\nconsider those submissions.\n<\/p>\n
\t\t6.The Apex Court in Mridul Dhar Case, while considering a similar
\nquestion, in paragraph 35(11) of its judgment has observed that
\n\t“If any private medical college in a given academic year for any reason
\ngrants admission in its management quota in excess of its prescribed quota, the
\nmanagement quota for the next academic year shall stand reduced so as to set off
\nthe effect of excess admission in the management quota in the previous academic
\nyear.”\n<\/p>\n
In Al-karim case also, the Apex Court has made a similar finding.\n<\/p>\n
\t\t7.Placing reliance on the above two judgements, Mr.V.P.Raman,
\nlearned counsel appearing for the appellant, would submit that inasmuch as the
\ninstitute had filled 57 seats during the academic year 2008-2009, it should
\nsurrender seven seats to the Government for the subsequent academic year.  This
\nsubmission did not find favour in the writ petition.   According to the learned
\nSingle Judge, only in the event the management had filled-up the candidates over
\nand above the management quota, the proportionate number of seats should be
\nsurrendered to the Government in the subsequent academic year.  In our opinion,
\nthe said finding needs no interference.  Sub-paragraph (11) of paragraph 35 of
\nMridul Dhar’s case directs that only when a management grants admission in its
\nmanagement quota in excess of its prescribed quota, the management quota for the
\nnext academic year shall stand reduced so as to set-off the effect of excess
\nadmission in the management quota for the previous academic year.  In other
\nwords, the reduction of seats to set-off the effect of excess admission will be
\nnecessary only in the event any excess admission is made over and above the
\nmanagement quota.\n<\/p>\n
\t\t8.In the instant case, for the academic year 2008-2009, the
\ninstitute, though is entitled to admit 100 seats by itself, by virtue of the
\nagreement with the State Government,  had surrendered 50 seats to be filled-in
\namong the candidates sponsored by the Selection Committee constituted by the
\nState Government for the purpose.  Those seats can be called as ‘government
\nquota’ and the institute is entitled to fill-up 50 seats as management quota.
\nThere is no dispute that for the academic year 2008-2009, the institute had
\nfilled initially only 50 seats available under management quota.  The Selection
\nCommittee sponsored 50 seats as agreed upon between the institute and the
\nGovernment.  By some reason or the other, five candidates did not join and two
\ncandidates, who joined, had left the college.  The last date for filling-up of
\nall the seats, as directed by the Supreme Court, was 30.09.2008.  The management
\nhad also periodically intimated the Selection Committee as to the vacancy in the
\nGovernment quota.  Even after the candidates sponsored by the Selection
\nCommittee, there were seven lapsed seats on the last date for admission, namely
\nthe cut-off date for admission fixed by the Hon’ble Apex Court.  These seats
\nwere filled by the institute as the seats should not go waste. It is the
\nspecific contention of the institute that only the fees applicable to the
\nGovernment quota seats alone were collected.  In that view, it cannot be called
\nthat the institute had filled more than 50% of the seat to which it was entitled
\nto fill as management quota.  The institute had admitted only 50 candidates as
\nagainst management quota and the remaining seven seats should be considered as
\nlapsed seats which were available to the Government and only for the reason that
\nthe candidates sponsored by the Selection Committee did not join within the last
\ndate for joining, those seats were filled-up by the institute.\n<\/p>\n
\t\t9.By applying paragraph 35(ii) of Mridul Dhar case, the excess
\nadmission must be over and above the management quota.  For instance, if the
\nmanagement had filled more than 50 seats under Management quota apart from
\nfilling-up the entire seats earmarked for the Government quota which will result
\nin the admission of more than sanctioned strength of 100 seats.  In view of the
\nspecific directions of the Supreme Court, by which the question of reduction of
\nseats so as to set-off in the subsequent year, would be available only when
\nthere was  excess of admission in the management quota, we do not find any
\nreason to interfere with the finding of the learned Single Judge in this regard.\n<\/p>\n
\t\t10.Mr.Isaac Mohanlal, learned counsel appearing for the institute,
\nalso submitted that after the judgment of the Supreme Court in Islamic Academy
\nof Education vs. State of Karnataka,<\/a> reported in (2003)6 SCC 697, the institute
\nneed not even admit the 50% of the seats as Government quota as it has been held
\nthat it would be an interim arrangement.  In our opinion, the said submission
\ncannot be accepted for the simple reason that it is the 1st respondent institute
\nwhich had entered into an agreement with the Government for seat sharing and
\nsuch arrangement is certainly binding on the 1st respondent institute.  Having
\nentered into an agreement, the institute cannot now turn around and say that it
\nwould not entertain the Government seats in view of the subsequent judgment of
\nthe Supreme Court. Hence the said contention cannot be entertained.\n<\/p>\n
\t\t11.This takes us to the next submission as to whether the Medical
\nCouncil of India has any role to play in regulating the admission in medical
\ncolleges.  In exercise of the power under Section 33(fc) of the Indian Medical
\nCouncil Act, 1956, the Medical Council, with the previous sanction of the
\nCentral Government, may make regulations to provide the criteria for identifying
\na student who has been granted a medical qualification referred to in the
\nExplanation to sub-section (3) of Section 10B of the Act.  Section 10B of the
\nAct relates to non-recognition of medical qualifications in certain cases. Sub-
\nsection (1) of that section states that where any medical college is established
\nexcept with the previous permission of the Central Government in accordance with
\nthe provisions of section 10A, no medical qualification granted to any student
\nof such medical college shall be a recognised medical qualification for the
\npurposes of the Act.  Explanation to the said section says that<\/p>\n
“for the purposes of this section, the criteria for identifying a student who
\nhas been granted a medical qualification on the basis of such increase in the
\nadmission capacity shall be such as may be prescribed.”\n<\/p>\n
\t\t12.By virtue of the above power, the Medical Counsel, with the
\nprevious sanction of the Central Government, made The Medical Council of India
\n(Criteria for Identification of Students Admitted in Excess of Admission
\nCapacity of Medical Colleges) Regulations, 1997.  Regulation 3(b) relates to
\n‘Admission Capacity’ as referred to in Explanation 2 of Section 10A of the Act
\nrelating to permission for establishment of new medical college, new course of
\nstudy, etc.   Regulation 3(c) relates to the competent authority to implement
\nthe Regulations meaning thereby the Central Government or State Government or
\nmedical college to allot students for admission to various medical colleges in a
\nState or Union Territory.  Regulation 4 relates to sanctioned intake capacity in
\nmedical colleges.  By that regulation, the Council shall every year, prior to
\nthe start of undergraduate\/postgraduate academic medical course, intimate the
\nmedical colleges and State\/Union Territory Governments, the sanctioned intake
\ncapacity of the students for undergraduate\/postgraduate courses in medical
\ncolleges.  In terms of Regulations 5 and 7, the medical colleges shall furnish
\nyear-wise list of students admitted to the council within three months from the
\nclosure of admission.  Regulation 8 relates to matters relating to excess
\nadmission to be decided by the Council.  That regulation contemplates that all
\nmatters relating to excess admission of students shall be decided by the
\nCouncil.\n<\/p>\n
\t\t13.Going by the above provisions, the Medical Council would
\ncertainly have the power to regulate the admissions of students in the medical
\ncolleges within the sanctioned intake capacity and if the admission is made over
\nand above the sanctioned strength, it would certainly have the power to take
\nappropriate action against the concerned.  In our opinion, these regulations
\nwould be available to the Medical Council only in the event the admission is
\nmade over and above the sanctioned strength.  For example, if an institute had
\nadmitted more than 100 candidates, namely the sanctioned strength, it would
\ncertainly refuse to recognise the admissions made over and above the sanctioned
\nintake. The power to  The power to take such action is not available if the
\nseats are filled within the sanctioned strength.\n<\/p>\n
\t\t14.The question of 50% of seats to be considered as Government quota
\nis only by virtue of the agreement between the institute and the State
\nGovernment.  That seat sharing is entirely between the institute and the
\nGovernment  and for that purpose the Medical Council has no role to say that as
\nto whether such seat sharing could be made or not and if such seat sharing could
\nbe made what is the percentage of seat sharing, etc.  The power that will be
\navailable to the Medical Council is not to find out as to whether the institute
\nadmits students according to the seat sharing agreement entered with the State
\nGovernment but only to the extent as to whether the institute has admitted more
\nthan the sanctioned strength.  To this extent, the  Medical Council has power
\nand not otherwise.\n<\/p>\n
\t\t15.With the above modification in the finding of the learned Single
\nJudge, the writ appeal is disposed of.  No order as to costs.  Connected
\nM.P.(MD)No.1 of 2010 is closed.\n<\/p>\n
gb<\/p>\n
To<\/p>\n
1.The Secretary,
\n  Union of India,
\n  Department of Health,
\n  Central Secretariat,
\n  New Delhi.\n<\/p>\n
2.The Secretary,
\n  Government of Tamil Nadu,
\n  Health & Family Welfare Department,
\n  Fort St.George,
\n  Chennai-600 009.\n<\/p>\n
3.The Director of Medical Education,
\n  Directorate of Medical Education,
\n  162, Poonamallee High Road,
\n  Kilpauk, Chennai-600 010.\n<\/p>\n
4.The Secretary,
\n  Selection Committee,
\n  Directorate of Medical Education,
\n  162, Poonamallee High Road,
\n  Kilpauk, Chennai-600 010.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Medical Council Of India vs The Chairman on 31 August, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31\/08\/2010 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN and THE HONOURABLE MR.JUSTICE M.DURAISWAMY Writ Appeal (MD)No.74 of 2010 and M.P.(MD)No.1 of 2010 Medical Council of India, rep.by its Secretary, Pocket-14, Sector-8, Dwarka, New Delhi-110 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-164612","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMedical Council Of India vs The Chairman on 31 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/medical-council-of-india-vs-the-chairman-on-31-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Medical Council Of India vs The Chairman on 31 August, 2010 - 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